Dossis v Andreadis (No 2) - [2012] SADC 108

District Court of South Australia
(Civil)
DOSSIS v ANDREADIS (NO 2)
[2012] SADC 108
Reasons for Ruling of His Honour Judge Slattery (ex tempore)
23 August 2012
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
CONTROL OF TRIAL AND PRE-TRIAL PROCESS
Evidence by Affidavit - Evidence via Audio Visual Link - Evidence viva voce - Non-attendance by Defendant - Efficient determination of dispute.
District Court Civil Rules 2006 r 209, referred to.

DOSSIS v ANDREADIS (NO 2)
[2012] SADC 108

On 17 August 2012 I delivered ex tempore reasons in which I refused permission to the defendant to file and serve an amended defence and counterclaim in the form of the document FDN51. In para 11 of my reasons, I identified efforts that were made to make contact with the defendant. At that time I appointed today as the adjourned date for the directions hearing. I asked the plaintiff to formulate some draft directions and to circulate them to the defendant with an explanatory memorandum of what will happen today and including what the document, that is the draft directions, means.
I was not prepared to make directions on 17 August as no notice of the content of them had been given to the court or to the defendant. After the hearing on 17 August 2012, a copy of my ex tempore judgment was sent by the court to the defendant by email or 20 August 2012 at 5.07 pm. It was sent to both of the defendants’ email addresses namely, [email protected] and [email protected]. At the time I was satisfied that the addresses to which the material was sent were the only electronic addresses available to the court.
I am now satisfied that Mr Dimos Andreadis has received notice of the ex tempore judgment delivered.
On 20 August 2012 at 7.26 pm Mr Andreadis sent to the court as well as to the instructing solicitors for the plaintiff an email in which he addresses the fact that he had received the documents sent by the court on 20 August aforesaid. He said in his email that he did not fully understand the contents of the document, he draws attention to his letter of 13 August 2012 (to which I made reference in my ex tempore reasons on 17 August 2012) and that it was not his wish to contract with my ‘company/corporations’, as: ‘I have not been charged of any crime and no judicial order has been made’. He also states that in relation to costs he does not have any assets or savings. He refers to an email received from Mantzouris & Partners of 28 May 2012 which is a letter marked without prejudice and, it maybe presumed, is a privileged document. He also made reference to comments made by Master Blumberg on 15 June 2012 and that as his counterclaim and amended defence has been rejected, he asked that the trial of 3 September 2012 is stood down as he will not be attending without a defence and counterclaim. This assertion is factually wrong. The defendant’s defence dated 9 February 2012 (FDN44) stands as his defence in the action. He then, at the bottom of the letter says:
IMPERATIVE: Due to work commitments and as my job is in jeopardy I am only available after 6 pm weekdays and between 9 am-5 pm Saturdays and Sundays. Please do not contact me in work hours.
On 17 August 2012, I requested the plaintiff’s solicitors to ensure that the plaintiff had formal notice of today’s hearing and had before him the material that I was due to consider today, namely the draft minutes and the explanatory memorandum. I asked for the affidavit of proof of those matters to be filed by midday on 22 August 2012. The plaintiff’s solicitors have conformed with my request. The plaintiff today reads the affidavit of Thuan Ngoc Nguyen, sworn 22 August 2012, FDN56.
I make particular reference to Exhibit TNN8 to that affidavit. It contains material delivered to those solicitors by the defendant which is similar to the material sent by Mr Andreadis to the court on the evening of 20 August 2012. Bearing in mind the content of the email correspondence that has been passing between the defendant and the plaintiff’s solicitors and also between the defendant and this Court, I am satisfied of the fact that the defendant is aware of the appointment today, the purpose of today’s hearing, the business that is to be dealt with today and the purpose generally to facilitate this matter to trial.
I refer to paras 12 and 13 of the affidavit of Mr Nguyen (FDN56) disclosing that a paper copy of the ex tempore judgment of 17 August 2012 was sent by the plaintiff’s solicitor to the defendant by ordinary and registered post to the defendant’s post office box address: PO Box 4103, Gilberton, Victoria 3072.
At the commencement of today’s hearing, I asked again for an all courts call to be made. I also asked for a telephone call to be made to Mr Andreadis’ mobile phone number. There was no response to the all courts call. The telephone call went to message bank and a message was left for Mr Andreadis to call the court urgently. I am not aware of any response to the telephone call.
I have now had an opportunity to review the draft minutes presented by the plaintiff. I am not minded, in the exercise of my discretion, to order the defendant to file any affidavit material. In my opinion no useful purpose is served in doing so. I am satisfied that directions should be given for the use of the affidavit material of the plaintiff’s witnesses that was filed at court following an appearance before Judge Beazley in 2011. I am also satisfied that particular orders should be made for identification of those persons whom the defendant wishes to cross-examine.
There are a number of interstate witnesses to be called by the plaintiff and affidavit material from those witnesses has been filed at court. I am satisfied that it is convenient for their evidence to be given by audio visual link. I have asked the plaintiff to make contact with the courts department to make arrangements for those persons to be present at a place interstate for their evidence to be given by audio visual link into a place in South Australia.
It has been identified that the following courts are potentially available; court 18 (although this seems unlikely), court 26 (back-up court, first reserve) and court 12 in the Supreme Court building (3 September 2012 only). Absent access to those courts, the only other available facility is the Federal Court. In my view, under the powers given to me under r 209 of the rules, I have power to make orders for the giving of evidence by audio visual link and any other directions that are necessary and convenient for the proper administration of the trial of this action commencing on 3 September 2012.
To that end, I have formulated a set of orders following the submissions made by the plaintiff. I have reviewed the plaintiff’s version of minutes and I have amended those minutes into a form of orders that I am prepared to make today. In summary, I am not prepared to allow the plaintiff or her present husband to give evidence by affidavit and that that evidence must be given viva voce. I am, however, content for particular witnesses who are described in para 1.1 of the minutes of order (to be made by me) should give evidence by affidavit. I am satisfied that the proposed orders are consistent with the proper administration of justice and the use of public resources of South Australia to that end. I am also satisfied that the orders properly recognise and protect the interests of the litigants in this action and that the orders will assist in the efficient determination of the plaintiff’s claim and the defendant’s defences to that claim.
I therefore make orders in terms of the minutes of order this day amended and initialled by me. I make a formal order adjourning this directions hearing to 9.15 am on Friday, 31 August 2012.
I also order that a copy of these reasons, together with a copy of the sealed minutes of order, together with a copy of a letter from the court be sent by the court to Mr Andreadis at his postal address and electronically to his email address [email protected].